Twitter's new era continues to stir debate around online free speech – Foundation for Individual Rights in Education


Anton Zubchevskyi / Kylona / r.classen/ 
Elon Musk’s Twitter takeover has been a constant source of news and controversy — for a variety of reasons. Chief among them is content moderation on the platform and how it might change under Musk’s leadership. Musk has branded himself a “free speech absolutist,” though some doubt he’ll truly live up to that title (or claim he already isn’t). 
But whatever happens to Twitter under Musk — whether it becomes a free speech paradise, fails spectacularly, or slowly slides into obscurity — the horrified reactions to the very idea of making the platform more free speech-friendly are sad to see. They add fuel to efforts by government and powerful corporations to prevent freer discourse on the platform.
In the last week, the conversation around Twitter and free speech only heated up. Let’s look at some recent developments and explore what they might mean for the future of free expression on Twitter and other social media platforms.
Since Musk took over, Twitter has reinstated multiple banned accounts of high-profile people and organizations, including the satirical news site The Babylon Bee, author and clinical psychologist Jordan Peterson, conservative media group Project Veritas, comedian Kathy Griffin (who was also suspended during the Musk era for violating Twitter’s impersonation policy), and former President Donald Trump. 
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Last week, Musk tweeted a poll asking whether Twitter should offer “a general amnesty to suspended accounts, provided that they have not broken the law or engaged in egregious spam.” Almost three-quarters of those who voted said yes, prompting Musk to declare, “Amnesty begins next week.” In the words of Alejandra Caraballo, a clinical instructor at Harvard Law School’s cyberlaw clinic, this amounts to “opening the gates of hell.” 
But the First Amendment didn’t open the gates of hell, and we shouldn’t assume that tolerating a greater diversity of views and ideas on social media will either. 
Social media platforms are not obligated to abide by the First Amendment, but they would be wise to look to our courts’ extensive body of First Amendment case law for guidance. Of course, reducing arbitrary censorship on social media doesn’t mean platforms should allow speech unprotected by the First Amendment, like true threats or incitement to imminent violence, to go unpunished. 
Musk tweeted Monday that Apple threatened to remove Twitter from Apple’s App Store with no explanation. 
If true, there are reasons to believe the threat is related to potential changes to Twitter’s content moderation policies. Earlier this month, Apple CEO Tim Cook said he was “counting on” Twitter to continue moderating “hate speech.” In 2021, Apple removed the social media platform Parler from its App Store due to its dissatisfaction with the platform’s content moderation practices. And in response to Musk’s tweets, the decentralized content-sharing network LBRY said Apple demanded that it filter certain search terms on its apps or they would not be allowed in the App Store. 
This, from a company whose animating philosophy used to be “think different.”
These episodes underscore Apple’s massive influence over tech companies and developers who rely on the App Store to make their products available to billions of iPhone users. And the free speech implications are serious. Apple can easily abuse its dominance in the app market to make it more difficult for people to access social media platforms and content providers that express or host speech Apple doesn’t like — or exclude developers who criticize Apple.
But perhaps that won’t last. Congress is considering antitrust legislation that would reduce Apple’s and Google’s control over the app market. 
In response to a question about Twitter becoming a “vector for disinformation,” White House Press Secretary Karine Jean-Pierre said this week that it’s something the White House is “certainly keeping an eye on.” She added that social media platforms have a “responsibility to make sure that when it comes to misinformation, when it comes to the hate that we’re seeing, that they take action.” 
Incidentally, reports emerged yesterday that Twitter decided to stop enforcing its COVID-19 misinformation policy.

FIRE’s new Director of Public Advocacy Aaron Terr and the Cato Institute’s Will Duffield join the show to discuss a slew of recent free speech news.
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What Jean-Pierre means by “responsibility” is unclear, but one thing is for sure: The government has no authority to force private social media companies to remove First Amendment-protected speech from their platforms. That includes much of what commonly gets thrown into the ill-defined buckets of “misinformation” or “hate speech.” The government can too easily take advantage of the elasticity and subjectivity of these categories to suppress minority views or voices critical of authority. 
Jean-Pierre’s comments are the latest, though far from the worst, example of “jawboning” — government officials applying pressure to private platforms to censor lawful speech. “Left unchecked,” writes Cato Institute policy analyst Will Duffield, “it threatens to become normalized as an extraconstitutional method of speech regulation.” 
Of course, public officials use their bully pulpit all the time to speak out about societal issues and promote ideas for fixing them. But it’s unacceptable for them to suggest a private entity will face repercussions from the government if it fails to comply with demands to censor lawful speech. Such threats may even violate platforms’ First Amendment rights.
Earlier this week, entrepreneur and TV personality Mark Cuban tweeted at Musk:
Cuban is correct that the First Amendment binds only the government, and we can all read publicly available judicial opinions to understand its meaning. But social media platforms — which have immense influence over the public conversation — should nonetheless adopt policies that promote a culture of free expression. 
And whatever speech restrictions exist, Cuban is right to advocate for transparency. Users deserve to know with reasonable certainty what speech is prohibited, whether platforms are implementing their policies fairly and consistently, the grounds for content moderation actions, and how to appeal those decisions. Platforms should also reveal the extent of government involvement in any such decisions — which, in some instances, may violate users’ First Amendment rights.
Maybe a Twitter Bill of Rights isn’t such a bad idea.
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